McMahon v The State of Western Australia
[2010] WASCA 143
•30 JULY 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: McMAHON -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 143
CORAM: McLURE P
BUSS JA
MAZZA J
HEARD: 4 MAY 2010
DELIVERED : 30 JULY 2010
FILE NO/S: CACR 67 of 2009
BETWEEN: TREVOR CHARLIE McMAHON
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :SCHOOMBEE DCJ
File No :IND 755 of 2008
Catchwords:
Criminal law - Conviction - Whether trial miscarried as a result of the conduct of trial counsel - Turns on own facts
Legislation:
Nil
Result:
Application for leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Ms V Amidzic
Respondent: Mr J Mactaggart
Solicitors:
Appellant: Amidzic Lawyers
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Ali v The Queen (2005) 79 ALJR 662
Nudd v The Queen [2006] HCA 9
R v Birks (1990) 19 NSWLR 677
TKWJ v The Queen (2002) 212 CLR 124
Weiss v The Queen (2005) 224 CLR 300
Wilde v The Queen (1988) 164 CLR 365
McLURE P: The appellant applies for leave to appeal and, if leave is granted, to appeal against his conviction after trial on four counts of sexual penetration of his de facto daughter during the period 14 January 2005 to 31 December 2005. The ground of appeal is that the trial miscarried because trial counsel:
(a)failed to call relevant and material witnesses in defence of the accused despite the appellant's instructions that they be called and the fact that they could provide relevant, cogent and material evidence;
(b)incorrectly advised the appellant about the implications of giving evidence in his own defence and effectively decided for the appellant that the appellant would not give such evidence despite the appellant's firm and continuing instructions that he wished to do so;
(c)failed to act on the appellant's instructions regarding the potential alibi defence relevant to at least one of the counts in the indictment; and
(d)failed to obtain full and proper instructions from the appellant such that in effect no real defence was presented at trial.
Background
It is necessary to begin with the chronology of events leading up to the trial which was held on 28 and 29 January 2009.
Trial counsel, Mr Paul Sullivan, commenced acting for the appellant at his committal in the Magistrates Court some time before June 2008. The appellant's first appearance in the District Court was on 18 June 2008 when he pleaded not guilty to a five‑count indictment dated 21 May 2008.
The appellant appeared in the District Court on a further eight occasions before the commencement of his trial in January 2009. He appeared on 4 and 17 July 2008, 15 September 2008, 3 and 17 October 2008 and 1, 4 and 12 December 2008. Mr Sullivan appeared for the appellant on each occasion.
On 17 July 2008, the court ordered that the complainant's visually recorded interview with police (VROI), which took place over six days between April and July 2006 and lasted somewhere between 11 and 13 hours, stand as the complainant's evidence‑in‑chief. The VROI occupies 425 pages of transcript. It is apparent that Mr Sullivan had been provided with the prosecution brief some time prior to this appearance.
The appellant's trial was listed for hearing on 15 September 2008 and again on 1 December 2008. On the first occasion the trial was adjourned on the application of the prosecution. The second occasion did not proceed because of the failure of the prosecution to comply with orders relating to the service of witness statements.
On 15 September 2008, the State was not in a position to proceed with the trial because the complainant, who lived in New South Wales, had not made contact with the DPP and had left contact telephone numbers where she could not be contacted (blue appeal book (B) 53/54). At this hearing, the prosecution foreshadowed that it would prefer to obtain a proof of evidence from the complainant and lead her evidence in the usual way. Mr Sullivan opposed the State's adjournment application without success.
On 17 October 2008 the court listed the trial for hearing on 1 December 2008. As at 17 October 2008, the prosecution had still not proofed the complainant nor made a decision about whether it would edit the VROI to something manageable or not rely on it at all (B 70).
By 1 December 2008, the prosecution was still not ready for trial. Although the complainant had been proofed, a statement had yet to be provided to the defence. Moreover, the prosecution sought to amend the indictment to delete count 2 and realign the dates and location of the offences. Counsel for the prosecution referred to the problems of the VROI as follows:
The real problem with this particular case, your Honour, is the 13 hours of DVDs, which is really quite extraordinary, and it is almost impossible to follow what's going on, from either listening or reading the transcript of those DVDs (B 74).
The trial judge was clearly intent on avoiding the loss of all the days for which the trial had been set aside, pressing counsel for the appellant for particulars of any prejudice occasioned by the proposed amendments to the indictment and the State's failure to provide a statement of the complainant's evidence. After hearing submissions, the trial judge gave orders for the complainant and her younger sister to give evidence and be cross‑examined prior to trial. The visual recording of the evidence was listed for 4 December 2008. The prosecution undertook to provide the defence with witness statements by the end of 1 December 2008 which appears to have happened.
The complainant and her younger sister gave evidence and were cross‑examined on 4 December 2008 (the pre‑recorded evidence). The trial commenced on 28 January 2009. At the commencement of the trial the prosecution, in the presence of the jury, moved to amend the indictment to bring it into line with the complainant's pre‑recorded evidence. The pre-recorded evidence of the complainant and her younger sister were played to the jury.
By consent, a statement of Natalie Rodney was read by the prosecution. The prosecution also read a statement of Bradley Wayne Gardiner, a police officer who gave uncontentious evidence. After the prosecution closed its case around mid‑afternoon on 28 January 2009, Mr Sullivan advised the court that the appellant would exercise his right to remain silent and would not call any witnesses (B 131). Addresses of counsel and the trial judge's summing up occurred on 29 January 2009.
It is relevant to trace the amendments to the indictment. In the original indictment dated 21 May 2008, there were five counts. The dates and location at which the offences allegedly occurred were as follows:
1.Between 14 Jan 05 and 2 Feb 05 Heathridge
2.As above Heathridge
3.Between 31 Aug 05 and 7 Sept 05 Heathridge
4.Between 23 Sep 05 and 27 Sept 05 Beechboro
5.Between 28 Feb 06 and 1 April 06 Busselton.
On 1 December 2008 the prosecution presented a new indictment in which the location of count 3 was changed from Heathridge to Busselton, the location of count 4 changed from Beechboro to Heathridge, and the location of count 5 changed from Busselton to Beechboro.
At the commencement of the trial on 28 January 2009, the prosecution amended the indictment to reflect the complainant's pre‑recorded evidence. Count 2 was discontinued and the dates and locations of the offences to which the appellant pleaded not guilty were as follows:
1.Between 14 January 2005 and 2 Feb 2005 Heathridge
2.Between 1 March 2005 and 31 July 2005 Busselton
3.Between 1 October 2005 and 31 December 2005 Heathridge
4.Between 1 June 2005 and 31 July 2005 Beechboro.
The prosecution case
The complainant's evidence was to the following effect:
Count 1:Prior to her sixteenth birthday (which was on 2 February 2005) the appellant sexually penetrated the complainant's vagina with his penis. The offence took place in a bedroom of their Heathridge home before the appellant drove the complainant to a local shopping centre to meet her boyfriend.
Count 2:The appellant sexually penetrated the complainant's vagina with his penis whilst the family were staying at a holiday camp near Busselton after which he took her to some bushland at Yallingup where he hit her to the head with a wooden bat.
Count 3:The appellant picked up the complainant in Fremantle and drove her to his Heathridge home where he penetrated her vagina with his penis.
Count 4:During the middle of 2005, the appellant penetrated the complainant's vagina with his penis. The offence took place on a bed in the spare bedroom of his sister's house in Beechboro.
In relation to ground 1, the complainant was cross‑examined with the object of showing that the offence could not have happened when she said it did because school had not started and she had not yet met her boyfriend Dean (B 16 ‑ 17). She was also cross‑examined about prior inconsistent statements she made concerning her relationship with the appellant (B 17), the details of what occurred (B 18) and about a sexual assault later in the day (B 22). Questions directed to getting the complainant to describe the appellant's penis were unproductive (B 20 ‑ 21).
In relation to count 2, the complainant was cross‑examined about prior inconsistent statements about the time of the year when the assault occurred (B 22), where the offence occurred (B 22) and when the appellant allegedly hit her with a wooden bat (B 25).
In relation to count 3, the cross‑examination identified matters in the complainant's statement signed on 4 December of which the complainant had not given evidence. The complainant's response was largely that she could not now remember the detail.
In relation to count 4, there was a challenge to the complainant's evidence that the offence occurred on a bed in a spare bedroom on the ground that the appellant's sister lived alone and there was only one bed which was in the main bedroom. She was also cross‑examined about inconsistencies between her evidence at trial and her statement (B 32 ‑ 34).
In relation to all offences it was put to the complainant that she resented her mother's relationship with the appellant, that she lied in order to obtain criminal injuries compensation, that she had admitted to Ms Rodney that she had made up sexual allegations against the appellant and that she was a heroin user and was using at the time the allegations were made (B 34 ‑ 35). At the end of the cross‑examination the transcript records the following:
If I might just have a moment with the accused, your Honour?‑‑‑No further questions, thank you, your Honour (B 36).
The complainant's younger sister gave evidence that whilst at an Aboriginal camp near Busselton in March 2006, the appellant said to her that he was sorry and that he had been having sex with her sister. She ran from the house and when she returned she overheard an argument between the appellant and her mother (the appellant's de facto wife) in which the appellant said that 'she wanted it' and that he was sorry for what had happened (B 39). Some time later the appellant said to the witness that he was sorry for what had happened and that he didn't mean to hurt her or her family.
The younger sister was cross‑examined on the basis that the appellant, who had been drinking and smoking marijuana, was slurring his words so she misunderstood what he said (B 42). It was also suggested that ambient noise may have prevented her from correctly overhearing what was said between her parents.
Legal principles and approach of parties
The appellant has to demonstrate that the conduct of his counsel caused a miscarriage of justice, a task which constitutes a heavy burden: TKWJ v The Queen (2002) 212 CLR 124 [74] (McHugh J). That is a consequence of the adversarial nature of a criminal trial and the role and function of counsel. Ordinarily, an accused is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involved errors of judgment or even negligence: TKWJ [74], [79] (McHugh J); R v Birks (1990) 19 NSWLR 677, 685 (Gleeson CJ).
In this context, miscarriage of justice has two aspects, process and outcome. If the conduct of counsel has deprived the accused of a fair trial according to law, that will give rise to a miscarriage of justice without regard to whether counsel's conduct might have affected the outcome: TKWJ [76] (McHugh J); Nudd v The Queen [2006] HCA 9 [3] ‑ [7] (Gleeson CJ). This corresponds with that limb of the proviso where there is a serious breach of the pre‑suppositions of a trial: Weiss v The Queen (2005) 224 CLR 300 [46]; Wilde v The Queen (1988) 164 CLR 365, 373. A complete failure to cross‑examine a complainant or a complete failure to address the jury may result in an unfair trial: TKWJ [76]. So too may wrong advice that an accused is not entitled to give evidence: Nudd [17].
In the majority of cases, irregular conduct of counsel will not deprive the appellant of a fair trial. In such circumstances, the ultimate question of whether a miscarriage of justice has occurred raises two issues. First, did counsel's conduct result in a material irregularity in the trial. Secondly, is there a significant possibility that the irregularity affected the outcome: TKWJ [79] (McHugh J); Ali v The Queen (2005) 79 ALJR 662 [18] (Hayne J).
The test of whether there is a material irregularity is objective: TKWJ [17], [27] ‑ [28], [107]. Ordinarily, it is difficult to establish a material irregularity when the alleged error of counsel concerned forensic choices upon which competent counsel could have differing views: TKWJ [81]. However, if the error of counsel plainly affected the result of the trial, there will be a miscarriage even though the error involved a forensic choice or judgment. Where the error involves the failure to adduce evidence, there are parallels with the test for the admission of new or fresh evidence: TKWJ [32] (Gaudron J).
The outcome of this appeal depends on the appellant establishing a material irregularity affecting the outcome. Where material irregularity is relied on, the focus must be upon what happened or did not happen at trial, not on why the error occurred (whether that be for failure to take proper instructions or for any other negligent act or omission): Nudd [25] (Gummow & Hayne JJ). Based on the nature and extent of the evidence adduced in the appeal, it appears neither counsel understood this fundamental proposition.
The witnesses called on behalf of the appellant at the hearing of the appeal were the appellant, his mother and his sister. The State called Mr Sullivan. Much of the evidence was directed to the acts and omissions of Mr Sullivan without reference to the nature and extent to which his conduct resulted in an irregularity in the trial and the affect of the irregularity on the outcome. In those circumstances, it is unnecessary to attempt to resolve all the conflicts in the evidence adduced in the appeal or to make credibility findings about the witnesses.
Failure to call or cross‑examine relevant witnesses
The appellant contends that trial counsel should have called the appellant's sister, the complainant's step‑sister Kylie, the complainant's mother (Kathleen McIntyre) and another unidentified de facto daughter. Save for the appellant's sister, hearsay evidence was adduced about what the witnesses could say. The appellant also contends that trial counsel should have requested the presence of Ms Rodney for cross‑examination rather than consent to the reading of her statement.
In order to establish that a failure to call a witness caused or contributed to a miscarriage of justice, an appellant is ordinarily required to call the witness in question to give evidence in a form which would be admissible at trial so the appeal court can be satisfied of what the witness would actually say under oath and the relevance and cogency of that evidence. That is also the procedure adopted where an appellant seeks to rely on fresh or new evidence as a ground of appeal.
There was no explanation for the appellant's failure to call or subpoena Kylie, Kathleen McIntyre or the other unidentified de facto daughter and no justification for departing from the general rule. Insofar as this ground relies on the failure to call those witnesses, it must fail.
The appellant's sister, Corelee, gave evidence. In an affidavit tendered as her evidence‑in‑chief in the appeal, she responded to what the complainant said in her statement (signed on 4 December 2008) which was that the offence at Beechboro occurred on a Sunday in September 2005, probably 25 September. The appellant's sister said at that time she was living alone and there was no other room used as a second bedroom. Her evidence was that apart from her own bedroom there were two other 'bedrooms' both of which were being used as storage rooms without any beds.
However, the complainant's evidence at trial departed from her statement as to the timing of the offence at Beechboro. She gave evidence that the offence occurred in the middle of 2005 during school holidays (B 17). The complainant's evidence‑in‑chief concerning the offence is as follows:
Okay, and what did [the appellant] firstly do at his sister's place?‑‑‑He was fixing her double bed.
And did he finish doing that job?‑‑‑Yes.
Yes, and did anything happen after that?‑‑‑Yes.
And what happened?‑‑‑He ‑ he told his kids to go back to his grandmother's house.
He ‑ sorry?‑‑‑He told his kids to go back to his mother's house.
Okay, yes, and then something happened?‑‑‑Yeah
And what happened?‑‑‑He had sex with me again.
He, sorry?‑‑‑He had sex with me again.
And whereabouts did that happen?‑‑‑In the bedroom next door to his sister's (B 13 ‑ 14).
The complainant was cross‑examined about this incident as follows:
Do you recall that you and [the appellant] were at … his mother's house, before going to Corelee's house around the corner? Do you remember that?‑‑‑I don't remember.
Do you remember that [the appellant's] children, who were Trevor junior and Trevor's daughter, were there as well for a while? You don't remember?‑‑‑No.
Trevor's daughter's name is Corelee?‑‑‑Yes.
Now, do you remember that they arranged to meet you at the sister's house, Corelee's house. You and Trevor went to Corelee's house and Trevor's children were going to the shops first and then were coming back to Corelee's house, the sister of Trevor, around the corner where the bed needed to be fixed?‑‑‑Yes.
Now do you remember that or not?‑‑‑(no audible answer)
Do you remember his children being at his mum's place?‑‑‑No.
Setting off and then going to come back to meet you all at his sister's house. At his sister's house, do you remember that?‑‑‑No.
But you know who his children are don't you?‑‑‑Yes.
The one is called Trevor?‑‑‑Yeah.
And Corelee is Trevor's daughter?‑‑‑Yes.
You're not able to tell us whether you saw them that day?‑‑‑No.
The accused person, Trevor, and you, went round to his sister's house to fix his sister's bed. That's right, isn't it?‑‑‑Yes.
This house is about a kilometre away from his mother's house. Do you remember that?‑‑‑Sort of.
Now, you then say that intercourse occurred between you and he in that house in another bedroom. Is that what you say?‑‑‑Yeah.
…
This intercourse you say occurred in the spare room?‑‑‑Yeah.
So are you able to tell us how long it took Trevor to fix his sister's bed?‑‑‑No.
Did he in fact try and fix his sister's bed?‑‑‑Yes, he did.
…
This intercourse which you say has occurred, you say it occurred in the other room?‑‑‑Yes.
In actual fact there was no bed in the other room, was there?‑‑‑Yes.
There was only one bed in the house and that was the one that Trevor was fixing?‑‑‑No, there wasn't, because Corelee had someone else living at her place (B 31 ‑ 33).
Trial counsel then cross‑examined the complainant on her statement. That cross‑examination disclosed that there were matters in her statement (signed on the morning she gave evidence) which she said in evidence she could not then remember (whether the appellant wore a condom, whether he had intercourse from the back or the front). Cross‑examination continued:
Was there anyone else at the house?‑‑‑I don't remember.
Isn't it the truth that Corelee, his sister, lives alone?‑‑‑No. She had someone living there.
Do you know that person's name?‑‑‑No. She got married to one of Trevor's cousins, Josh.
Now, did this room have a window?‑‑‑I don't remember. I've only been to this house three or four times. I have no idea.
Do you know if there were blinds or curtains?‑‑‑I don't remember.
Well, I suggest to you that this never occurred at all, did it?‑‑‑Yes, it did. I just don't remember (B 34).
Mr Sullivan's explanation for not calling the appellant's sister was the lack of particularity as to the date of the offence (appeal transcript (ats) 58). Clearly that would be no answer if the situation in the house of the appellant's sister had been a continuing one. Mr Sullivan was derelict in failing to fully inform himself on these matters.
On the other hand, the appellant failed to adduce evidence in the appeal as to the situation in the middle of 2005. The evidence of the appellant's sister relates to September 2005. The appellant has failed to demonstrate that the omission to call the appellant's sister resulted in a material irregularity or that any irregularity could possibly impact on the outcome.
I turn now to the failure to cross‑examine Ms Rodney. The prosecution brief contained a statement from Ms Rodney dated 3 November 2006. Part of the statement was read into evidence by consent. After introductory matters, the statement read into evidence was as follows:
In June 2004 I was working at Balcatta Senior High School. A student by the name of [the complainant] came to me and disclosed certain information. I had spoken to [the complainant] previously as she often came to say, 'Hello', and was very talkative. She often spoke about her family.
I explained to [the complainant] that we needed to go to the principal and get her mother to the school to protect her if things were happening at home. I asked her if she was telling the truth, and [the complainant] replied she was telling the truth, and it was fine for her mother to come to school to see the principal.
Once we'd finished our meeting we went to the principal's office and spoke with Anna Christanozic. I did not take any notes during our meeting. [The complainant] appeared nervous but was crying at the same time. [The complainant] remained with Anna. I went to [the complainant's mother's] place in Tuart Hill and conveyed her to the school. We went to the office. [The complainant] was still crying, but became more nervous when her mother came in.
We put the allegations to [the complainant's mother] who started to scream at [the complainant], who accused [the complainant] of lying. After a while of [the complainant's mother] screaming, [the complainant] then said she had made it up. I explained that we were there to protect her, and that she needed to tell the truth, and the matter had to be dealt with. [The complainant] reiterated she was lying and the reason she had lied was because of a mobile phone that [the appellant] was going to buy her. [The complainant's mother] didn't want her to have a new mobile so she decided to get [the appellant] into trouble.
Mr Sullivan was cross‑examined as to why he did not insist on Ms Rodney giving evidence in the usual way and being available for cross‑examination. Mr Sullivan explained he did that because the prosecutor had advised him that Ms Rodney was most reluctant to come to court and at least if the statement was read into evidence it would show that the complainant had reneged on her statement in front of her mother and the school head mistress. He was also concerned at the possibility that she would give different evidence if she went into the witness stand (ats 70).
At the hearing on 15 September 2008, trial counsel informed the court that he regarded Ms Rodney as a State witness who was integral to the defence and would be needed at trial (B 66). The same message was conveyed to the court on 17 October 2008 adding that he understood from the prosecutor that Ms Rodney was unwilling to attend court (B 71). These statements to the court are not inconsistent with the decision to consent to the tender of Ms Rodney's statement.
Counsel for the appellant did not identify any area of cross‑examination of Ms Rodney that could potentially be to the advantage of the appellant. There being no identified potential for advantage and there being a risk of disadvantage, the appellant has not demonstrated any material irregularity in the failure to cross‑examine Ms Rodney.
Potential alibi defence
The gravamen of the complaint is that trial counsel failed to make the inquiries necessary to obtain the appellant's employment records in order to determine where the appellant had been working (either in the Perth metropolitan area or Busselton) when the offences were committed, it being asserted that such evidence was likely to have provided the appellant with an alibi.
The appellant's evidence on this subject is that in relation to a charge of sexual assault in Perth, his employment records showed he was working at Busselton. The appellant does not identify the relevant offence nor annex the employment records on which he relied (exhibit 1, [53]).
Mr Sullivan's explanation is as follows:
I explained to the appellant that the indictment alleged something occurred between dates. There was a lack of particularity about which the defence complained. I was never shown any employment records relating to the appellant (exhibit 4, [33]).
The evidence establishes that Mr Sullivan took no steps to obtain, or cause to be obtained, the appellant's employment records. The matter should have been investigated. However, Mr Sullivan's failure to do so does not establish an irregularity in the trial. The appellant was required to put before this court evidence in a form which would be admissible at trial to show that he was not (or may not have been) present in the metropolitan area or alternatively Busselton in the period in which the relevant offences occurred. A negligent omission by counsel in the preparation for trial has no significance unless it causes a material irregularity in the trial which has the capacity to affect the outcome. The employment records should have been adduced in evidence in the appeal. The appellant has failed to demonstrate any material irregularity in the trial that could affect its outcome. This ground must be dismissed.
Failure to obtain full and proper instructions
In the particulars to this ground the appellant contends that trial counsel did not afford him an adequate opportunity to provide instructions and did not afford the appellant an opportunity to view and respond to the VROI.
There is a conflict in the evidence as to the time spent by trial counsel in obtaining instructions. The substance of the appellant's evidence‑in‑chief is as follows. He had about four to five court appearances before his trial date was set and on a couple of occasions he spoke to trial counsel for about 10 minutes before court. He was given a transcript of the VROI and had great difficulty reading it because it bounced all over the place and was very confusing but was not given the opportunity of actually watching the video material (exhibit 1, [32] ‑ [33]). When trial counsel made the home visit, which took about a couple of hours, they talked about the transcript and the appellant pointed out to trial counsel all the things that the complainant was wrong about (exhibit 1, [34]). In his cross‑examination the appellant reduced his guesstimate of the amount of time spent with Mr Sullivan (ats 19, 20).
It is common cause that the appellant did not view the VROI. However, I am unable to identify any disadvantage to the appellant in not viewing the VROI; none was identified by the appellant.
The appellant's mother and sister had lower estimates of the length of the meeting at the mother's house and of the meetings with counsel prior to court. The probabilities are that the appellant is likely to have a more reliable estimate of such matters. All persons present at the meeting at the house confirmed that Mr Sullivan had made handwritten notes of the information he was supplied by the appellant and his sister.
Mr Sullivan's evidence was that on the many occasions he had to appear in the District Court, he discussed the prosecution case with the appellant for varying periods of time from 15 minutes to 45 minutes and longer (exhibit 6, [3]). He said the meeting at the house had been for at least two hours (exhibit 4, [5]). According to Mr Sullivan, the appellant had been unwilling to deal with the transcript of the VROI which he had provided to the appellant and asked him to comment on by writing in the margin. Thus, he took the unusual step of going to his client's home to take instructions (exhibit 5, [4]).
Mr Sullivan was unable to recall the date of the meeting at the house. Initially he said in cross‑examination that he thought it was in January 2009 on the basis that he took the pre‑recording of the complainant's evidence. Later, he thought the meeting was after he had been provided with the complainant's statement on 1 December 2008 and before the pre‑recording on 4 December 2008. No other witness was able to remember the date of the meeting at the house. However, the appellant said that Mr Sullivan also took instructions on the witness statement of the younger sister at the meeting at the house (ats 27). That statement (also dated 4 December 2008) was provided to Mr Sullivan with the complainant's statement on 1 December 2008. The probabilities are that the meeting took place between 1 and 4 December 2008.
Mr Sullivan was evasive in answering questions in cross‑examination directed to whether he took notes at meetings at which he obtained instructions (ats 53, 54, 55, 72). It subsequently emerged that Mr Sullivan had 'trimmed' his file after the trial was completed, meaning he had thrown away the VROI, the witness statements and any notes which were not recorded on those documents (ats 73). Mr Sullivan was unable to produce any documents recording any of the appellant's instructions or his advice to the appellant. Mr Sullivan's conduct in disposing of his file, particularly when he was aware after trial of the appellant's dissatisfaction with his performance, is deserving of censure. If it were necessary to resolve the conflicts in the evidence, I would accept the evidence of the appellant except to the extent that it is internally inconsistent or inconsistent with the objectively determined probabilities.
It is clear from the appellant's evidence in the appeal and from the cross‑examination of the complainant and her younger sister at trial that Mr Sullivan had obtained instructions from the appellant and his sister. Indeed, the appellant confirms that he instructed Mr Sullivan on all the things said by the complainant in the VROI that were wrong. However, once again the appellant has focussed on counsel's omissions without giving proper attention to what as a result of counsel's failure did not, but should have, happened at trial. As observed by Gummow and Hayne JJ in Nudd [25], a focus on the failure to take proper instructions misses the mark and does not, without more, give rise to a miscarriage of justice. The appellant has not demonstrated a material irregularity in the trial and thus this ground must also fail.
Failure of the appellant to give evidence
The appellant gave the following evidence‑in‑chief (exhibit 1):
39.Throughout the whole of my dealings with Paul, he told me that I would not be giving evidence because I would not need to as the prosecution did not have a strong enough case against me.
40.Whenever I raised my side of the story with Paul and brought up me saying that during the trial, Paul always said it would not come to that, it would not be necessary for me to give evidence at all.
41.Paul told me that if I gave evidence my prior record would be shown to the court and it would make me look bad. I said I wasn't worried about that so long as I could get the truth across which was that I did not have any kind of sexual contact with [the complainant].
42.Paul said that the things that were on my record would not look good in front of a jury and I felt I had to accept what he said because he was the lawyer.
The appellant did not recall any conversation with Mr Sullivan in court about him giving evidence (exhibit 1, [44]).
However, it is clear from the cross‑examination of the appellant that the appellant knew he was entitled to give evidence at trial and understood Mr Sullivan to be recommending that he not give evidence. He said Mr Sullivan 'suggested that I don't give evidence' and that it was 'better that I didn't' (ats 20 ‑ 21). The appellant said to Mr Sullivan, 'Wouldn't it be better if I said something' (ats 27).
The cross‑examination continued:
Is it your evidence to their Honours that you were definitely wanting to give evidence at the trial?‑‑‑At least halfway through the trial when things didn't ‑ we had a few arguments during the trial too.
I appreciate that?‑‑‑And I did want to but he still suggested right to the end that I don't give evidence.
At the conference at the home, though, at which your mother and your sister were present, did you tell Mr Sullivan then that you wanted to give evidence?‑‑‑I just listened to him and he suggested that I don't.
And you went along with that. Is that right? Is that your evidence?‑‑‑Because of the fact that my ‑ ‑ ‑
Your record?‑‑‑Yes, exactly so (ats 21).
Based on the appellant's evidence, Mr Sullivan did not advise the appellant that he was not entitled to give evidence. That conclusion is consistent with the appellant's considerable exposure to, and familiarity with, the criminal justice system, he having a long record of prior convictions, albeit for relatively minor offences. The appellant's prior record includes convictions for assault (three), burglary (one), cannabis cultivation (two), possession of a prohibited drug or smoking utensil (five), resisting arrest (four), breach of bail (two). giving a false name (three) and driving related offences (22). The thrust of the appellant's evidence is that the appellant acted on the strong recommendation of Mr Sullivan not to give evidence notwithstanding his own assessment that he should do so.
The appellant's mother and sister also gave evidence on this question. His mother said the appellant asked on three separate occasions if he could take the stand and each time Mr Sullivan said no (exhibit 2, [21]). His sister said (exhibit 3, [10] ‑ [15]) that at the meeting at the house the appellant asked Mr Sullivan if he could get up and address the court and Mr Sullivan said no, that if he did that the prosecution would bring up the appellant's prior convictions and that Mr Sullivan was insistent that the appellant would not be giving evidence in the trial. However, she was not able to recall the exact words Mr Sullivan used. I prefer the evidence of the appellant to that of his mother and sister, whose level of perception and understanding of the lawyer's advice was not informed by any prior personal experience in the criminal justice system, they never having been convicted of any offence.
Mr Sullivan's evidence was to the following effect. He explained to the appellant how the criminal justice system worked and emphasised his right to give evidence and what would happen if he did (exhibit 6, [7]). Mr Sullivan explained to the appellant that if he could not improve on his position by giving evidence that if he did give evidence he would be cross‑examined; if evidence of his good character was given, then he could put his character in issue and be cross‑examined on relevant previous convictions such as for assault or dishonesty; it was always made clear to the appellant that it was his choice if he wanted to give evidence (exhibit 5, [8]). When the appellant mentioned calling good character witnesses, Mr Sullivan explained that this would expose his own character to attack and result in reference to his convictions for assault and dishonesty (exhibit 4, [10]). According to Mr Sullivan, most of what the appellant said in his instructions was by way of a blanket denial of the allegations, the balance being speculation and an attack on the complainant's character (exhibit 4, [18], [20], [24]; exhibit 5, [4]).
Mr Sullivan did not have a practice of obtaining written acknowledgement of the advice given in relation to the exercise (or not) of the right to silence (ats 81). I will proceed on the basis that the appellant's evidence largely accords with what he was told by Mr Sullivan, with one caveat. The likelihood is that the appellant (and his mother and sister) rolled up in their minds Mr Sullivan's advice relating to calling character evidence and calling the appellant.
The substance of the claim is that Mr Sullivan was negligent in his (strong) advice to the appellant to exercise his right to silence. That is a matter involving forensic choice and judgment upon which competent counsel could have different views. The appellant has not proven that there was positive evidence which could and should have been adduced by him at his trial. Evidence of a bare denial would not, having regard to the standard directions on the scope and effect of the right to silence, have materially advantaged his defence, whilst giving evidence would expose him to the risks associated with cross‑examination. A bare denial of the
evidence given by the younger sister would, as a result of the line of her cross‑examination, be countered by questions as to the effect of the alcohol and cannabis on his recollection about what he said.
There was also the risk that he may, by his answers in cross‑examination, trigger the prosecution's right to cross‑examine the appellant on his prior record. His convictions for violence would be relevant to the complainant's evidence that the appellant assaulted her with a bat and the dishonesty offences relate to his credibility. His pattern of offending may be interpreted as reflecting a consistent preparedness to depart from accepted community norms. On no view could it be said that the appellant was of prior good character. The most that could be said was that he had no prior convictions for sexual offences.
The appellant has not demonstrated that there was a material irregularity as a result of the exercise of his right to remain silent.
Conclusion
The appellant has failed to establish that the conduct of trial counsel resulted in a miscarriage of justice. As a result of the failure to focus on what happened or did not happen at trial, I would refuse leave to appeal and dismiss the appeal.
BUSS JA: I agree with McLure P.
MAZZA J: Subject to one matter, for the reasons given by McLure P, I agree that this appeal should be dismissed.
I will explain the point on which I differ from McLure P, and then I will add some observations about the conduct of defence counsel.
In relation to the appellant's failure to give evidence, I have concluded, like McLure P, that the appellant was aware that he was entitled to give evidence if he wanted to. I have come to this conclusion relying only on the appellant's evidence in this appeal and specifically the portions of his evidence referred to by McLure P in her reasons.
However, unlike McLure P, I prefer not to make anything of the appellant's prior criminal record. This is because I do not know whether the appellant went to trial in relation to any of the matters on his record and if he did, whether there was an issue about him giving or calling evidence.
With respect to defence counsel's conduct, his evidence exposed deficiencies in a number of areas which I hope will not be repeated in the future and do not represent the current standards of practice in the criminal defence bar.
Defence counsel failed, in this case, to do three things which I would regard as being both simple and basic.
First, he did not take a signed proof of evidence from the appellant. Had he done so, it is unlikely that there would have been any dispute as to what instructions were given to counsel.
Second, defence counsel did not retain any contemporaneous note he made in his meetings with the appellant or the appellant's family. It is disquieting that Mr Sullivan was unable to produce to this court any contemporaneous file notes of these meetings. His explanation that he 'trimmed', that is, destroyed, documents he held on his file after the conclusion of the case is unsatisfactory.
Third, it has long been the practice in this jurisdiction when an accused person does not wish to give evidence and/or call evidence for defence counsel to obtain written instructions to this effect. In his evidence, Mr Sullivan said that he was aware of the practice, but said that he did not adopt it at the time. This is unfortunate, to say the least. Here, had written instructions been given, there would have been documentary evidence as to defence counsel's advice, the appellant's understanding of that advice and his instructions with respect to it.
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